The Service Agreement incorporates the following documents by reference: (i) the Services Description that describes the Services you are buying and related fees; (ii) these General Terms and Conditions containing the general terms and conditions applicable to all Services, (iii) the specific Product Terms and Conditions containing the additional terms for the particular Services you are buying, and (iv) the Acceptable Use Policy. When we use the term “Service Agreement” or “Agreement” in any of these documents, we are referring collectively to all of them. The Agreement is effective as of the time that you sign the form of Agreement prepared by MX Layer, or accept the Agreement as part of MX Layer’s online order process.
Some words used in the Agreement have particular meanings:
“Acceptable Use Policy” or “AUP” means the MX Layer Acceptable Use Policy posted at http://www.smtpio.com/legal/aup as of the date you sign the Agreement.
“Affiliate” means any and all legal entities which now or hereafter the ultimate parent of MX Layer controls. For the purpose of this definition, “control” shall mean an entity, directly or indirectly, holding more than fifty per cent (50%) of the issued share capital, or more than fifty per cent (50%) of the voting power at general meetings, or which has the power to appoint and to dismiss a majority of the directors or otherwise to direct the activities of such legal entity.
“Business Day” or “Business Hours” means 8:00 a.m. – 5:00 p.m. Monday through Friday, United States eastern time, excluding federal public holidays in the United States.
“Confidential Information” means all information disclosed by one of us to the other, whether before or after the effective date of the Agreement, that the recipient should reasonably understand to be confidential including: (i) unpublished prices and other terms of service, audit and security reports, product development plans, nonpublic information of the parties relating to its business activities or financial affairs, data center designs (including non-graphic information you may observe on a tour of a data center), server configuration designs, and other proprietary information or technology, and (ii) information that is marked or otherwise conspicuously designated as confidential. Information that is developed by one of us on our own, without reference to the other’s Confidential Information, or that becomes available to one of us other than through violation of the Agreement or applicable law, shall not be “Confidential Information” of the other party. Confidential Information shall not include Customer Data.
“Country Specific Terms” means the addendum or addenda that may be incorporated into your Service Agreement if a portion of your Services are to be provided from a non-United States jurisdiction for which we have special legal terms.
“Customer Data” means all data, records, files, input materials, reports, forms and other such items, including any PII (as defined in the applicable Product Terms and Conditions) or "cardholder data" as that term is in the Payment Card Industry-Data Security Standard, that are received, stored, or transmitted using the Hosted System.
“Hosted System” means a combination of hardware, software and networking elements that comprise an information technology system. Depending on the Services you are buying, the Hosted System may consist of a dedicated system for your use only, or the right to use certain parts of a shared system that MX Layer maintains for many customers, or a combination of some dedicated elements and some shared elements.
“Product Terms and Conditions” means the terms and conditions for the particular Services you are buying.
“Services Description” means: (i) the online order that you submit or accept for the Services, or (ii) any other written order (either in electronic or paper form) provided to you by MX Layer for signature that describes the type or types of services you are purchasing, and that is signed by you, either manually or electronically.
“Service Level Guaranty” or “Service Level Guaranties” or “SLA” means (i) a guaranty or guaranties identified as a “Service Level Guaranty” or “Service Level Guaranties” in the applicable Product Terms and Conditions or (ii) any provision which provides a specified credit remedy for an identified failure to deliver or provide the Services.
“Services” means Services provided to you by MX Layer, collectively.
“Supplementary Services” means those Services you purchase from MX Layer other than your main Service, including time and materials based professional or consulting services, one-time or non-recurring services which are not part of the existing Support, and any other services identified as "Supplementary Services" on the applicable Services Description.
“Support” has the meaning stated in the applicable Product Terms and Conditions.
MX Layer’s obligation to begin providing Services is contingent on your satisfaction of MX Layer’s credit approval criteria. MX Layer will provide the Services in accordance with the Services Description, the Service Level Guaranties, and other specifications in this Agreement. MX Layer will perform any Supplementary Services in a good and professional manner. MX Layer will maintain security practices and from time to time have its systems and/or security practices tested by outside parties in accordance with generally accepted methods. MX Layer will perform all Services in accordance with applicable law.
You must use reasonable security precautions in connection with your use of the Services. You must comply with the laws applicable to your use of the Services and with the Acceptable Use Policy. You must cooperate with MX Layer’s reasonable investigation of Service outages, security problems, and any suspected breach of the Agreement. You are responsible for keeping your account permissions, billing, and other account information up to date using your MX Layer portal or via another MX Layer defined process. You must pay when due the fees for the Services stated in the Services Description or other agreement between us.
Customer Data Security: In addition to the foregoing obligations, you acknowledge that you are solely responsible for taking steps to maintain appropriate security, protection and backup of Customer Data. MX Layer’s security obligations with respect to Customer Data are limited to those obligations described in Section 3 above. MX Layer makes no other representation regarding the security of Customer Data. Customer is solely responsible for determining the suitability of the Services in light of the type of Customer Data used with the Services.
5.1 We do not promise that the Services will be uninterrupted, error-free, or completely secure. You acknowledge that there are risks inherent in Internet connectivity that could result in the loss of your privacy, Customer Data, Confidential Information and property.
5.2 We disclaim any and all warranties not expressly stated in the Agreement including the implied warranties of merchantability, fitness for a particular purpose, and non-infringement. You are solely responsible for the suitability of the services chosen, including the suitability as it relates to your Customer Data. Any services that we are not contractually obligated to provide but that we may perform for you at your request and without any additional charge are provided on an AS IS basis.
5.3 We do not promise to backup your data unless you have purchased backup services. If you purchase backup services, we do not promise to retain the data backup for longer than the agreed data retention period.
5.4 We will provide Support only to your administrative or technical contacts listed on your account. We will not provide support directly to your end users unless specifically agreed in writing.
5.5 Certain MX Layer Services are designed to help you comply with various regulatory requirements that may be applicable to you. However, you are responsible for understanding the regulatory requirements applicable to your business and for selecting and using those Services in a manner that complies with the applicable requirements.
MX Layer is not responsible to you or any third party for unauthorized access to your data or the unauthorized use of the Services unless the unauthorized access or use results from MX Layer’s failure to meet its security obligations stated in Section 3 (Our Obligations) of these General Terms and Conditions or the Services Description. You are responsible for the use of the Services by any employee of yours, any person you authorize to use the Services, any person to whom you have given access to the Services, and any person who gains access to your data or the Services as a result of your failure to use reasonable security precautions, even if such use was not authorized by you.
MX Layer agrees that it will not use or disclose Customer Data. Customer Data is and at all times shall remain the exclusive property of Customer and will remain in the exclusive care, custody, and control of Customer.
7.1 Sales Taxes. Unless otherwise expressly provided in the Agreement or included in the invoice for the Services, all amounts due to MX Layer under the Agreement are exclusive of any value added, goods and services, sales, use, property, excise and like taxes, import duties and/or applicable levies (collectively, “Tax”). If MX Layer is required by law to collect Taxes on the provision of the Service, MX Layer will invoice you for such Tax and you must pay MX Layer the amount of the Tax that is due or provide MX Layer with satisfactory evidence of your exemption from the Tax. The obligation to pay any Taxes that Customer may be required to pay in connection with Customer’s use of Services or Customer’s payment of amounts due to MX Layer under the Agreement shall be borne exclusively by Customer. You must provide MX Layer with accurate factual and adequate information and documentation (as determined by MX Layer), to help MX Layer determine if any Tax is due with respect to the provision of the Services.
7.2 Withholding Taxes. All payments to MX Layer shall be made without any withholding or deduction for any Taxes, except for any withholding (or similar) taxes imposed on income that may be attributed to MX Layer in connection with its provision of the Services that you are legally required to withhold from such payment and remit to the applicable governmental or taxing authority (such taxes, “Local Withholding Taxes”). You agree to timely provide MX Layer with adequate and accurate factual information and documentation (as determined by MX Layer), including tax receipts, of your payment of any such Local Withholding Taxes. MX Layer shall remit such cost to you in the form of a credit on your outstanding account balance following receipt of sufficient evidence of payment of any such Local Withholding Taxes as set forth above.
You represent and warrant that you are not on the United States Department of Treasury, Office of Foreign Asset Controls list of Specially Designated National and Blocked Persons and are not otherwise a person to whom MX Layer is legally prohibited to provide the Services. You may not provide administrative access to the Services to any person (including any natural person or government or private entity) that is located in or is a national of any country that is embargoed or highly restricted under United States export regulations.
See your applicable Product Terms and Conditions and Services Description for applicable term and renewal information as well as fee and pricing information.
We may suspend Services without liability if: (i) we reasonably believe that the Services are being used in violation of the Agreement; (ii) you don’t cooperate with our reasonable investigation of any suspected violation of the Agreement; (iii) there is an attack on your Hosted System or your Hosted System is accessed or manipulated by a third party without your consent, (iv) we are required by law, or a regulatory or government body to suspend your Services, or (v) there is another event for which we reasonably believe that the suspension of Services is necessary to protect the MX Layer network or our other customers. We will give you advance notice of a suspension under this paragraph of at least twelve (12) Business Hours unless we determine in our reasonable commercial judgment that a suspension on shorter or contemporaneous notice is necessary to protect MX Layer or its other customers from imminent and significant operational, legal, or security risk. If your Hosted System is compromised, then you must address the vulnerability prior to MX Layer placing the Hosted System back in service or, at your request, we may be able to perform this work for you at our standard hourly rates as a Supplementary Service.
11.1 You may terminate the Agreement for breach if: (i) we materially fail to provide the Services as agreed and do not remedy that failure within ten (10) days of your written notice describing the failure, or (ii) we materially fail to meet any other obligation stated in the Agreement and do not remedy that failure within thirty (30) days of your written notice describing the failure.
11.2 We may terminate the Agreement for breach if: (i) we discover that the information you provided for the purpose of establishing the Services is materially inaccurate or incomplete, (ii) the individual signing the Agreement did not have the legal right or authority to enter into the Agreement on behalf of the person represented to be the customer, (iii) your payment of any invoiced amount is overdue and you do not pay the overdue amount within four (4) Business Days of our written notice, (iv) without notice if you have made payment arrangements via credit card or other third party, and the third party refuses to honor our charges, or (v) you fail to comply with any other provision of the Agreement and do not remedy the failure within thirty (30) days of our notice to you describing the failure. We may also terminate the Agreement for breach if you violate the AUP more than once even if you cure each violation, or if your agreement for any other MX Layer service is terminated for breach of the acceptable use policy applicable to that service.
11.3 Either of us may terminate the Agreement if the other party becomes insolvent or is unable to pay its debts or enters into or files (or has filed or commenced against it) a petition, arrangement, application, action or other proceeding seeking relief or protection under the bankruptcy laws of the United States or any similar laws of the United States or any state of the United States.
Each of us agrees not to use the other’s Confidential Information except in connection with the performance or use of the Services, as applicable, the exercise of our respective legal rights under the Agreement, as may be required by law, or as set forth below.
Each of us agrees not to disclose the other’s Confidential Information to any third person except as follows:
13.1 We are not liable to you for failing to provide the Services unless such failure results from a breach of a Service Level Guaranty, or results from our gross negligence, willful misconduct, or intentional breach of the Agreement. The credits stated in the Service Level Guaranty are your sole and exclusive remedy for our failure to meet those guaranties for which credits are provided unless such failure is due to MX Layer’s willful misconduct.
13.2 Neither of us (nor any of our employees, agents, affiliates or suppliers) is liable to the other for any indirect, special, incidental, exemplary or consequential loss or damages of any kind. In addition, neither of us is liable for any loss that could have been avoided by the damaged party’s use of reasonable diligence, even if the party responsible for the damages has been advised or should be aware of the possibility of such damages. In no event shall either of us be liable to the other for any punitive damages or for any loss of profits, revenue, customers, contracts or goodwill.
13.3 We are not liable to you for lost data unless and to the extent you purchase data backup services from MX Layer and we fail to provide the backup services as agreed. If you purchase backup services, you release MX Layer from liability for loss of data to the extent that the data has changed since the time that we were last required by the Agreement to perform a backup.
13.4 Notwithstanding anything in the Agreement to the contrary, except for liability based on willful misconduct or fraudulent misrepresentation, and liability for death or personal injury resulting from MX Layer’s negligence, the maximum aggregate monetary liability of MX Layer and any of its employees, agents, suppliers, or affiliates in connection with the Services, the Agreement, and any act or omission related to the Services or Agreement, under any theory of law (including breach of contract, tort, strict liability, violation of law, and infringement) shall not exceed: (i) an amount that is twelve (12) times one month’s recurring fee under the Agreement for the Services that are the subject of the claim as of the time of the occurrence of the events giving rise to the claim, and (ii) for Supplementary Services, fees paid for the Supplementary Services that are the subject of the claim.
14.1 If we, our affiliates, or any of our or their respective employees, agents, or suppliers (the “Indemnities”) is faced with a legal claim by a third party arising out of your actual or alleged gross negligence, willful misconduct, violation of law, failure to meet the security obligations required by the Agreement, violation of the AUP, violation of your agreement with your customers or end users, or violation of Section 8 (Export Matters) or Section 16 (Software) of this General Terms and Conditions, then you will pay the cost of defending the claim (including reasonable attorney fees) and any damages award, fine or other amount that is imposed on the Indemnitees as a result of the claim. Your obligations under this subsection include claims arising out of the acts or omissions of your employees or agents, any other person to whom you have given access to the Services, and any person who gains access to the Services as a result of your failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by you. You must also pay reasonable attorney fees and other expenses we incur in connection with any dispute between persons having a conflicting claim to control your account with us, or any claim by your customer or end user arising from an actual or alleged breach of your obligations to them.
14.2 We will choose legal counsel to defend the claim, provided that these decisions must be reasonable and must be promptly communicated to you. You must comply with our reasonable requests for assistance and cooperation in the defense of the claim. We may not settle the claim without your consent, although such consent may not be unreasonably withheld. You must pay expenses due under this Section as we incur them.
You agree that we may publicly disclose that we are providing Services to you and may use your name and logo to identify you as our customer in promotional materials, including press releases. We will not use your name or logo in a manner that suggests an endorsement or affiliation.
16.1 General. You may not copy any software we provide for your use unless expressly permitted by the Agreement or use such software after the expiration or termination of the Agreement. You may not remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on any software we provide for your use. Unless permitted by the terms of an open source software license, you may not reverse engineer, decompile or disassemble any software we provide for your use except and to the extent that you are expressly permitted by applicable law to do this, and then following at least ten (10) days advance written notice to us.
16.2 Customer Provided Licenses. If you use any non-MX Layer provided software while using the Services you represent and warrant to MX Layer that you have the legal right to use the software in that manner. If MX Layer has agreed to install, patch or otherwise manage software in reliance on your license with a software vendor (rather than MX Layer’s license with the software vendor), then you represent and warrant that you have a written license agreement with the vendor that permits MX Layer to perform these activities. On MX Layer’s request you will certify in writing that you are in compliance with the requirements of this paragraph and any other software license restrictions that are part of the Agreement, and will provide evidence of your compliance as we may reasonably request. If you fail to provide the required evidence of licensing MX Layer may, at its option, either (i) charge you its standard fee for the use of the software in reliance on MX Layer’s licensing agreement with the vendor until such time as the required evidence is provided or (ii) suspend or terminate the Agreement.
MX Layer personnel may from time to time recommend third party software or other products and services for your consideration. MX Layer MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER REGARDING PRODUCTS AND SERVICES THAT ARE NOT PURCHASED FROM MX Layer. Your use of any such products and services is governed by the terms of your agreement with the provider of those products and services.
You may permit your subsidiaries and affiliated companies to use the Services if you wish, however you are responsible for the acts or omissions of your permitted users. MX Layer will provide support only to you, not to your customers, subsidiaries or affiliates. There are no third party beneficiaries to the Agreement, meaning that your customers, subsidiaries, affiliates and other third parties do not have any rights against either of us under this Agreement.
If you use any Services that have been identified as a “Beta” service, limited release, early
access, preview, pilot test, or with similar designation (a “Test Service”), then your use of the Test Service is subject to the following terms:
Your routine communications to MX Layer regarding the Services, including any notice of non-renewal, should be sent to your MX Layer account team using the control panel. If you want to give a notice regarding termination of the Agreement for breach, indemnification, or other non-routine legal matter, you should send it by electronic mail and first class United States mail to:
MX Layer’s routine communications regarding the Services and legal notices will be posted on the control panel or sent to the individual(s) you designate as your contact(s) on your account either by electronic mail (including an electronic mail referring you to a ticket posted on your control panel), United States mail, or overnight courier. Notices are deemed received as of the time posted or delivered, or if that time does not fall within a Business Day, as of the beginning of the first Business Day following the time posted or delivered. For purposes of counting days for notice periods, the Business Day on which the notice is deemed received counts as the first day. Notices must be given in the English language.
Each of us retains all right, title and interest in and to our respective trade secrets, inventions, copyrights and other intellectual property. Any intellectual property developed by MX Layer during the performance of the Services shall belong to MX Layer unless we have agreed with you in advance in writing that you shall have an interest in the intellectual property.
You do not acquire any ownership interest in or right to possess the systems used to provide the Service, and you have no right of physical access to servers or systems that are used to provide the Service. We do not acquire any ownership interest in or right to the information you transmit to or from or store during use of the Service.
If MX Layer or any of its customers is faced with a credible claim that the Services infringe on the intellectual property rights of a third party, and MX Layer is not reasonably able to obtain the right to use the infringing element or modify the Services such that they do not infringe, then MX Layer may terminate the Services on reasonable notice of at least ninety (90) days, and will not have any liability on account of such termination except to refund amounts paid for Services not used as of the time of termination.
Neither party may assign the Agreement without the prior written consent of the other party except that MX Layer may assign the Agreement to an Affiliate with sufficient financial standing in order to meet its obligations under this Agreement or as part of a bona fide corporate reorganization or a sale of its business. MX Layer may use third party service providers to perform all or any part of the Services, but MX Layer remains responsible to you under this Agreement for Services performed by its third party service providers to the same extent as if MX Layer performed the Services itself.
Neither of us will be in violation of the Agreement if the failure to perform the obligation is due to an event beyond our control, such as significant failure of a part of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry.
The Agreement is governed by the laws of the State of Nevada, exclusive of any choice of law principle that would require the application of the law of a different jurisdiction, and the laws of the United States of America, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. Each of us agrees that any dispute or claim, including without limitation, statutory, contract or tort claims, relating to or arising out of this Agreement or the alleged breach of this Agreement, shall, upon timely written request of either of us, be submitted to binding arbitration. The party asserting the claim may elect to have the arbitration be in-person, telephonic or decided based on written submissions. The arbitration shall be conducted in the State and county (or equivalent geographic location) of the non-asserting party’s principal business offices. The arbitration shall proceed in accordance with the commercial arbitration rules of the American Arbitration Association (“AAA”) in effect at the time the claim or dispute arose. The arbitration shall be conducted by one arbitrator from AAA or a comparable arbitration service, and who is selected pursuant to the applicable rules of the AAA. The arbitrator shall issue a reasoned award with findings of fact and conclusions of law and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Either you or we may bring an action in any court of competent jurisdiction to compel arbitration under this Agreement, or to enforce or vacate an arbitration award. We will pay the fee for the arbitrator and your filing fee, to the extent that it is more than a court filing fee. We agree that we will not seek reimbursement of our fees and expenses if the arbitrator rules in our favor. Each of us waives any right to a trial by jury, and agrees that disputes will be resolved through arbitration. No claim subject to this provision may be brought as a class or collective action, nor may you assert such a claim as a member of a class or collective action that is brought by another claimant. Each of us agrees that we will not bring a claim under the Agreement more than two years after the time that the claim accrued. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.
The following terms shall survive expiration or termination of the Agreement: Sections 7, 12, 13, 14, 17, 20, 21, 22, 23, 25, 26 and 27 of these General Terms and Conditions, all terms of the Agreement requiring you to pay any fees for Services provided prior to the time of expiration or termination or requiring you to pay an early termination fee, and all other provisions of the Agreement that by their nature are intended to survive expiration or termination of the Agreement.